Trapped by Law
Oregon was already 50 years old when a new statewide water law was passed in 1909. Up to that time, the laws had been vague, and disputes over water were common. When neighbors disagreed over who was entitled to water, the case was often settled with shotguns and dynamite. In that era, violence over water was so serious and so commonplace that Mark Twain is said to have observed, "Whiskey's for drinking; water's for fighting."
Matters might have continued this way indefinitely. But at the turn of the century, the U.S. Reclamation Service was prepared to build extensive irrigation projects to help stimulate Western agriculture. To qualify for the irrigation projects, states had to prove a workable system of water laws and rights.
In 1909, Oregon adopted a water law that was fairly similar to the laws in other Western states, except that Oregon provided for settlement of disputes in the courts. This was a new innovation in the field of water rights, and it became known as the Oregon System.
The new law was a major improvement over previous conditions. But it also provided the framework for many of our current problems. The four major principles of the 1909 Oregon Water Code are:
Water belongs to the public
- Water belongs to the public;
- Any right to use water is assigned by the state;
- Older rights take priority over newer rights; and,
- Water must be used for "beneficial" purposes and it cannot be wasted.
This provision turned out to be a two-edged sword. The law requires the state to issue every water right applied for unless there is injury to the public interest or other right-holders. To turn down an application, the state must prove that a use is against the public interest. Unfortunately, the law does not define public interest, so it can be widely argued that virtually any water use is good for the public. For example, a utility company could say that a new power plant is in the public interest — even if it requires river water that is already over-allocated.
Any right to use water is assigned by the state
The state does assign all water rights, and all the records are kept in a vault in Salem. Surprisingly, it doesn't cost anything to obtain a water right. The right itself is free. Rights are attached to a specific property. So when land is sold, the water rights are included. That's why rural real-estate ads often contain the statement "original water rights."
The law also contains a "use it or lose it" clause that requires right-holders to use all the water they are allotted or lose the right to the water. This was intended to prevent speculators from sitting on water rights indefinitely. But in practice, the clause often results in unnecessary withdrawals by irrigators who want to preserve their full rights.
Like most laws, this one has a long list of exceptions. For example, under a domestic groundwater exemption, almost anyone can drill a well and use 15,000 gallons a day. In recent years, the trend has been to allow for an increasing number of exemptions. Each exemption takes another gulp from the total supply of water. But exemptions are the only way to create "new" water from a supply that has been legally allocated for nearly a century.
Older rights take priority over newer rights
The 1909 law was based on a rule of "prior appropriation." This is a legal principle that gives preference to the oldest water rights, also called "senior" rights, over newer or "junior" rights. In other words, the "prior" water users always get their legal "appropriation" of water before anybody else. In practice, it's rather like a large family where a bowl of food is passed from the oldest to the youngest. By the time the bowl reaches the toddlers, there often isn't anything left.
Actual water use is almost never measured or recorded, so when water is in short supply, disputes can still arise among the holders of rights. If a prior-appropriation complaint is filed, an official "water master" has the right to enter private property to observe whether water is being used illegally. In general, if illegal use is discovered, the violator simply has to promise that they will apply for a water right - and in the meanwhile, they can go on using the water.
Water must be used for "beneficial" purposes
Unfortunately, the law never defined beneficial use or waste. During the past century, both terms have changed meaning several times.
For example, 100 years ago, water allowed to go to the sea without being used for some purpose was considered wasted water. Today we view that water as essential to the overall ecosystem.
The definition of "beneficial use" is also very changeable. At the turn of the century, billions of gallons were used in hydraulic mining operations. This type of mining severely polluted the water supply and caused irreparable environmental damage. But at the time, mining was considered an economically important industry, and water use was simply a necessary part of the mining process.
In sum, nearly a century after Oregon's water law was created, the agencies that manage water use must work harder than ever to find fair solutions. But their efforts are often stymied by legal exemptions, vague definitions and modern-day issues that the law's framers never anticipated.
NEXT: Tapping In >>